Since 1977, Jon Michael Probstein has assisted people and businesses in all matters, is currently special counsel to firms in LA and NYC, and operates his own office in Nassau County. In accordance with the Rules of Professional Conduct, this may be deemed "Attorney Advertising". Nothing contained herein should be construed as legal advice. Always consult a lawyer regarding any matter. Call 888 795-4555 or 212 972-3250 or 516 690-9780. Fax 212 202-6495. Email jmp@jmpattorney.com

Thursday, December 2, 2010

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

Here is a recent case where the Cliamant was just a few weeks later in the request for hearing:

Appeal from a decision of the Unemployment Insurance Appeal Board,filed February 26, 2010, which ruled that claimant's request for ahearing was untimely.

Nathaniel K. Davis, East Patchogue, appellant pro se.

Andrew M. Cuomo, Attorney General, New York City (Steven Koton ofcounsel), for respondent.

Before: Cardona, P.J., Peters, Rose, Stein and Garry, JJ.

MEMORANDUM AND ORDER

Claimant, a certified nurse's aide for an assisted living facility, wasterminated from employment for failing to disclose his criminal historyon his job application. Thereafter, he applied for unemployment insurancebenefits and the Department of Labor, finding that claimant lost hisemployment due to misconduct, denied his claim by initial determinationdated August 5, 2009. In response, claimant did not send a letterrequesting a hearing until September 23, 2009. Following a hearing, theUnemployment Insurance Appeal Board sustained the Commissioner of Labor'stimeliness objection and upheld the initial determination. Claimant nowappeals.

We affirm. Pursuant to Labor Law § 620 (1) (a), a claimant who isdissatisfied with an initial determination must request a hearing within30 days of the date that it was mailed, unless prevented from doing so byphysical or mental incapacity (see Matter of Wright [Commissioner ofLabor], 71 AD3d 1324 [2010]; Matter of Lewis [Commissioner of Labor],69 AD3d 1088 [2010]). Here, inasmuch as claimant admittedly mailed hisrequest for a hearing outside the 30-day time period and failed toproffer an acceptable excuse for the delay, we find no basis fordisturbing the Board's decision (see Matter of Wright [Commissioner ofLabor], 71 AD3d at 1324; Matter of Baird [Commissioner of Labor],54 AD3d 466, 467 [2008]).

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Jon Michael Probstein, Esq.

About Me

Since 1977, my practice consisted of representing and assisting people and businesses in all matters, including public and private corporations, on both a civil and criminal level. My services have included public offerings, proxy fights, securities regulation, all phases of civil and criminal litigation, family law, estate law, guardianships, negotiation and drafting of a wide variety of agreements and transactions, in addition to general advice with regard to the customs and practices within various industries. I was also a Guest Commentator on COURT TV and an arbitrator. I am admitted to practice in New York and the federal courts, Southern and Eastern District, as well as the Second Circuit Court of Appeals. Currently, I am special counsel to law firms in Los Angeles and New York, as well as operating my own office in Nassau County. I regularly perform pro bono work for the Volunteer Lawyers Project, Nassau/Suffolk Law Services, Inc. and the NYS Unemployment Insurance Appeals Board and I am a member of the LAP Committee of the Nassau County Bar Association. I also have a blog that discusses common legal problems which you can visit at http://jmpattorney.blogspot.com/